Today HP, tomorrow the world

[rivkat]

The Boston Globe has yet another story about fanfic. It's pretty insulting, in my opinion. To add injury to insult, they don't quote me, though they do quote heidi8 and Meredith McCardle, whose article about the legality of fanfic is here (scroll down; the article is in .pdf format). McCardle's article is written for either a legal or a fan audience. She says many things I agree with and some that I don't; she's clearly less comfortable with trademark law than copyright, and makes the trademark issues too complicated. (The short of it: there's not a trademark problem with fan fiction. Really.)

I have over twenty books stacked up that I ought to review and stories I ought to finish, but the Supreme Court really screwed me in my professional life by refusing to decide Nike v. Kasky, which I was planning to write about, and I need to figure out what to do about that. I already knew they were going to strike down sodomy laws, so the announcement didn't make me feel all that good. In fact, this Term was a real drag; my mom lost her prison visitation case 9-zip, and the end-of-Term cases make the Court look more moderate than it really is, which can only help Bush because people will think that the Court will keep the Republicans from going too far to the right.

At least Derek Lowe continues to make me happy: "They're advocating a mixture of aspirin, a statin, folic acid, an ACE inhibitor, a diuretic, and a beta-blocker. The idea is to go after cardiovascular disease with pretty much all the known therapeutic options at once. This is a touchingly linear approach to drug therapy. It's actually kind of sweet." A man who can think that an approach to drug therapy is cute is my kind of commentator.

Comments

[executrix.livejournal.com]

Well, yeah, but some pretty attenuated things have been found to have an effect on interstate commerce, so "use in commerce" might be found even if there were no "commercial use."

There really haven't been a helluva lot of cases on unauthorized derivative works, and there's no copyright law AU Exemption, and the classification of all derivative works as parodies really isn't very sound intellectually.

Then again, I'm not really sure what the damages would be.

[rivkat.livejournal.com]

"Use in commerce" is distinct from "commercial use." Both are required for trademark dilution, unlike trademark infringement (or, for that matter, copyright infringement). As you note, use in commerce is about channels of interstate/international commerce, but "commercial use" is the opposite of "noncommercial use," that is, selling or trying to make sales. This webpage surely is used in commerce for Commerce Clause purposes, at least as far as LJ is concerned, but it would be ludicrous to claim that it was "commercial use" for speech regulation purposes, which is the point of limiting the dilution law to "commercial use." So I can denigrate Disney all I want without fear.

The copyright questions are distinct; I believe the fair use claim is proper in most cases of fan fiction. Although it's often said that parodies are protected as fair uses, that's not quite correct (sadly, my former boss didn't do anyone any favors in his explanation in the Pretty Woman case) -- what's likely to be a fair use is a transformative use, of which parodies are sometimes examples. Fan fiction is transformative, mostly. For my now somewhat outdated take on the subject, which doesn't cover the controversy over The Wind Done Gone, you can check out my website (http://www.tushnet.com), under writings.

Damages are rarely at issue in cases like this; it's the threat of lawsuit in the first place that works the magic.

Re:

[executrix.livejournal.com]

(Mostly) just playing devil's advocate here--after all, I write fanfic, so I must have been able to convince myself that it was not an absolutely morally abhorrent thing to do.

1. On the trademark side, I wonder if it could be argued that fanfic/fanart *are* commercial because of their effect in impairing the market for, e.g., authorized spinoff novels?
2. On the copyright side, I don't think that all transformative uses are fair for either legal or moral purposes--of course US law has only a very limited recognition of droit morale, but perhaps there should be some recognition of the creator's belief that "my characters wouldn't do that!" or even "I get to write about my characters, you don't--get your own characters" or the copyright proprietor's belief that the property will be less valuable if its characters are widely thought of as "doing that."

[rivkat.livejournal.com]

1. So far, the argument that destroying the market = commercial has had extremely limited success -- an analogue of that argument has sometimes worked in domain name cases, where a few courts have accepted the argument that registering jewsforjesus.org to criticize Jews for Jesus is commercial use because it prevents people from reaching Jews for Jesus, but even there the courts are split, and I think this reasoning is unlikely to spread to non-domain name cases. Causing commercial harm is something that Consumer Reports can do by panning a product, but there's no way that that means CR is making "commercial use" of the product's name. Also, I think the TM owner would have a hard sell on market harm in the first place; there's really no evidence that things like Harry Potter fanfic have done anything other than whet people's appetites for more official novels.

2. It's always risky business to go to court in a fair use case, and judges are definitely influenced by concepts of moral right even when they have no formal place in US law. That said, the fair use test is pretty much anti-moral rights on this point: the less likely the copyright owner is to like what you've done, the more likely it is you've made a transformative fair use, as the Mitchell estate found out when it tried to stop Alice Randall from associating Gone with the Wind with homosexuality and miscegnation in The Wind Done Gone. My position is that moral rights are terrible ideas applied to anything other than limited-edition art, and I'm not so sure about limited editions. It comes down to what you think the law protects and ought to protect; I have some distant sympathy for an outraged JK Rowling who feels violated when her characters are perverted, but I don't think that outweighs the value to society of other people being able to play with those characters, at least noncommercially. If you (devil's advocate you) believe in moral rights, we're going to have a hard time talking because we don't share enough common premises, as is often the case when American and Continental ideas collide.

Re:

[executrix.livejournal.com]

(Mostly) just playing devil's advocate here--after all, I write fanfic, so I must have been able to convince myself that it was not an absolutely morally abhorrent thing to do.

1. I think we have to look at the trademarked character as an independent object of commercial value--almost as if the character were a person who could be "libeled"--certainly one that has a reputation that, perhaps, is harmed by the hijinks we assign to the character. Now, whether any more or any fewer Harry Potter lunchboxes will be purchased because of the number of Harry/Snape stories, I can't quantify...
2. On the copyright side, I don't think that all transformative uses are fair for either legal or moral purposes--of course US law has only a very limited recognition of droit morale, but perhaps there should be some recognition of the creator's belief that "my characters wouldn't do that!" or even "I get to write about my characters, you don't--get your own characters" or the copyright proprietor's belief that the property will be less valuable if its characters are widely thought of as "doing that."
3. I wonder whether the initial reasons for enacting a fair use exception were a) political (one should be able to comment on issues of interest to the community) and b) academic/scholarly, and fan usage generally falls outside these.
4. I assign a much higher relative value than you do to the "control of derivative works" within the "bundle of rights" of the owner of intellectual property!

[executrix.livejournal.com]

Ooops--sorry--I thought Version #1 didn't post so I rewrote it after reading the cited law review article.

[rivkat.livejournal.com]

I think I got 1 & 2 already -- did you post twice? LJ does that to me on a fairly regular basis -- but I'll go for 3 & 4. Fair use comes from the common law; its formulation in the US is generally traced from the early-1800s case Folsom v. Marsh, in which a Supreme Court justice sitting as a circuit judge set forth what is essentially the four-factor statutory test we have today. The kinds of uses thought to be fair have never been limited to any category or categories, though oddly enough we're seeing that now in an attempt by copyright owners to limit fair use only to transformative uses like parody, to the exclusion of things like personal-use copies and educational copying. Politics, particularly, has never been in the list of "good" purposes, though academic uses are frequently mentioned, as are parodies, when courts list examples of fair uses. Certainly in the 20th century, it was reasonably common for courts to say that parody or satire is likely to be fair use.

4. I assign a fairly high value to control of high-capital-investment derivative works. Movie rights are a great idea; other merchandising rights, like stuffed animals and souvenir cups, seem to me reasonable in today's economy. The right to control derivative works just because they're derivative, though, seems to me likely to conflict with others' expression in unfortunate ways and not add greatly to copyright owners' incentives; I would confine the derivative works right pretty tightly to those big-ticket items.

Re:

[executrix.livejournal.com]

Writing in great haste here--I apologize for the double post, and LJ devoured the TWO previous responses to Rivkat's scholarly and thoughtful contributions.

We really, really need a true 21st century set of intellectual property standards that respond to the needs of other than Disney!The tangled web of print/video/Web etc. rights has to be disentangled, and the interests of the creators of works, the owners of copyrights and trademarks, and those of noncommercial users have to be balanced. IMO, political debate was the essential reason for the Constitution's copyright clause, commercial development fitted in later and awkwardly.

Hmmm, maybe what I'm driving at is that characters are "artificial persons" in ways that corporations are not, and have rights of privacy/rights of publicity although of course those would be controlled by a creator or corporate rights owner. And I do think more European intellectual property concepts should be grafted into US law--not just droit morale but library lending royalties!